Cullum v. Dun & Bradstreet, Inc., 17095

• Decision Date: 06 December 1955
• Docket Number: No. 17095,17095
• Citation: 90 S.E.2d 370,228 S.C. 384
• Court: South Carolina Supreme Court
• Parties: F. R. CULLUM, d/b/a Cullum Motor Sales, Appellant, v. DUN & BRADSTREET, Inc., Respondent.

Page 370

90 S.E.2d 370

228 S.C. 384

F. R. CULLUM, d/b/a Cullum Motor Sales, Appellant, v. DUN & BRADSTREET, Inc., Respondent.

No. 17095.

Supreme Court of South Carolina.

Dec. 6, 1955.

A. R. McElhaney, Greenwood, for appellant.

Mays, Featherstone & Bradford, Greenwood, for respondent.

LEGGE, Justice.

Appellant, a dealer in used automobiles, brought this action for damages in the court of common pleas for Greenwood County, alleging that on March 9, 1953, respondent had maliciously libelled him by composing and publishing in writing concerning him a false and defamatory report in the following words: 'Owes heavily on the purchase price. Owes Ouzts $8,000.00 on business'. He alleged that the quoted language meant that he owed a large amount of money on the purchase price of his business, and further owed one Clinton R. Ouzts, of Greenwood, $8,000.00 on his business. As elements of damage resulting from such publication, he alleged injury to his reputation and credit, humiliation, embarrassment, mental anguish, and loss of profits. In its answer, respondent alleged, in addition to a general denial, that it was engaged in business as a mercantile agency, furnishing to its subscribers confidential information concerning the credit and estimated financial condition of individuals, firms and corporations engaged in business; that the information concerning appellant had been received from sources reasonably believed to be reliable, and had been furnished by respondent in the regular course of its business, in good faith, in the belief that it was true, without malice, and only to those of respondent's subscribers who had made inquiry regarding appellant; and that the information or report concerning appellant so furnished by respondent was qualifiedly privileged, and was furnished upon a qualifiedly privileged occasion. The answer further alleged that immediately upon being advised by appellant that the report of March 9, 1953, was incorrect, respondent had, through its representative, interviewed appellant and had promptly corrected the error by an interim report issued March 12, 1953, and a further report of March 13, 1953.

At the conclusion of all of the testimony, the trial judge directed a verdict in respondent's favor, upon the ground that the testimony admitted of no reasonable inference other than that the communication in question was published on a qualifiedly privileged occasion, and that there was no evidence of malice.

It is undisputed that respondent is a mercantile agency as alleged in its answer and that the report of March 9, 1953, concerning appellant's financial condition was made only to Stephenson Finance Company, a subscriber to respondent's service, in response to inquiry made pursuant to its contract with respondent. The report had also been mailed to another subscriber, Standard Oil Company, at Columbia, S. C., which had about the same time requested credit information concerning appellant; but it is uncontradicted that, immediately upon being advised that the report was erroneous, respondent's agent at Columbia so informed this subscriber and thereupon the envelope containing the report so mailed was 'picked up' by respondent's agent, having never been opened.

A communication on a subject in which the person communicating has an interest, or in reference to which he has a duty, is qualifiedly privileged if made in good faith, limited in its scope to the requirements of such interest or duty, and made to a person having a corresponding interest or duty. Fitchette v. Sumter Hardwood Co., 145 S.C. 53, 142 S.E. 828; Bell v. Bank of Abbeville, 208 S.C. 490, 38 S.E.2d 641; Fulton v. Atlantic Coast Line R. Co., 220 S.C. 287, 67 S.E.2d 425.

A communication thus qualifiedly privileged is not actionable, even though it contain a charge of crime, unless malice in fact be shown. As was said in Bell v. Bank of Abbeville, supra [208 S.C. 490, 38 S.E.2d 643]:

'Ordinarily, proof of a defamatory publication, charging another with the commission of a crime, makes out a prima facie case of malice in the author. But a privileged communication is an exception to the rule. In such case the presumption of malice is rebutted. The effect is to cast upon the plaintiff the necessity of showing malice in fact--that is, that the defendant was actuated by ill will in what he did and said, with the design to causelessly and wantonly injure the plaintiff.'

Since qualified privilege arises by reason of the occasion of the communication, a communication which goes beyond the requirement of the occasion loses the protection of the privilege, for it lacks the requisite element of good faith. When the protection of the privilege has been thus lost, the communication falls within the rule, applicable to unprivileged communications, that the defamatory language, in itself, may warrant the...